Bruce Construction Corporation et al., Appellants, v. United States to the Use of W. J. Everhart and Oliver A. Jordan, a Copartnership D/b/a Chattanooga Steel Erectors, Appellee, 237 F.2d 600 (5th Cir. 1956)

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US Court of Appeals for the Fifth Circuit - 237 F.2d 600 (5th Cir. 1956) October 24, 1956

Walter J. Merrill, Anniston, Ala., for appellants.

John W. Vardaman, Anniston, Ala., for appellee. Fred M. Milligan, Chattanooga, Tenn., on the brief.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.


Brought under the Miller Act1  by the subcontractors against the contractor under a contract with the United States for the construction, alteration, or repair of a public building or public work of the United States at Fort McClellan, the suit was for the balance due them for labor performed.

Submitted to a jury after a full trial on a charge, in respect of which no request was made, no exception taken, there was a verdict and judgment for plaintiff for $15,014.89, as to which no error is assigned except that the verdict is excessive.

Complaining that the maximum verdict which should have been rendered was $13,746.25, appellant is here tithing mint, anise and cummin and claiming that to the extent that the verdict exceeded this sum it was excessive and should be reformed.

Appellee, urging upon us that the verdict should have been an even greater sum, joining issue with appellants, insists that the attack upon verdict and judgment is without basis in the evidence.

We need not, indeed we should not, undertake to assess or weigh these respective claims since we are of the clear opinion that the verdict was not excessive as a matter of law. Coming here on a record containing not a single objection or exception in the course of the trial and no motion for directed verdict, appellants, in the guise of attacking the verdict as excessive, in effect ask us to weigh the evidence and determine for ourselves the amount owed to appellee.

We should not, indeed we cannot do this. The judgment is affirmed.


40 U.S.C.A. §§ 270a, 270b, 270c and 270d